dissenting.
The notice of motion for judgment filed by Percy C. Liggan, administrator of Julia Maude Liggan, deceased, sought recovery of $6,713.95. The sum was made up of two items. One of $1,500.00 cash, alleged to have been in the possession of decedent at the time of her death, which was on March 23, 1947, in defendant’s home. The other and larger item of $5,213.95, represented the funds from a check dated January 10, 1947, drawn by Wallerstein and Company, payable to Mrs. R. L. Liggan (who was the same person as Julia Maude Liggan) in payment for a parcel of real estate owned by her and recently sold by that company as her broker.
It was charged that Louise L. Nelson, defendant below, and plaintiff in error in this court, had wrongfully taken and appropriated these sums totaling $6,713.95, to her use.
Several days prior to June 1, 1948, the day on which this case was tried before a jury in the lower court, an order was entered requiring defendant to file her grounds of defense on or before May 31, 1948. She did not strictly comply with that order, but on June 1, 1948, the morning of the trial presented her written grounds of defense to the court. As her defense she denied that she had appropriated or received the $1,500.00 item, or the sum of $5,213.95, but admitted that she had received and held as her own $4,500.00, a part of the sum of $5,213.95, received from the sale of the real estate. She asserted that it had been given to her by her mother and that the gift was evidenced by a writing signed by her mother and dated March 21, *2231947. No mention was made in the grounds of defense that the fund or any part thereof was deposited or ever had been deposited in a bank, or that any deposit book had been delivered to her.
It will thus be seen that she denied knowledge or receipt of the $1,500.00, charged to have been appropriated by her, and denied recipt' of the sum of $5,213.95, but did admit receipt of $4,500.00 part thereof, which, however, she claimed was a gift.
The verdict returned by the jury was for $4,000.00.
They were well justified in rejecting plaintiff’s claim that defendant had appropriated the item of $1,500.00, cash, for there is but little evidence to sustain the administrator’s claim concerning that specific sum. But the verdict of $4,000.00 constitutes neither item claimed by plaintiff in his notice of motion, nor is it the sum that defendant admits having received. That finding is definitely unresponsive to the claim and case presented by either litigant. It is so at variance with the evidence presented that plaintiff in error in her petition to this court says, “Neither the plaintiff, nor the defendant, claimed that sum or any combination that would total that sum.”
The record presents a picture of distinctly conflicting evidence and definitely contradictory statements in defendant’s own testimony. It discloses a trial in which neither litigant sufficiently developed the available facts necessary to a full and correct understanding by the jury of the true situation. The name, “Mrs. R. L. Liggan,” across the back of the check, which defendant says was written by her mother and is alleged to be her endorsement of the check, bears no similarity to the signature on the writing which reads, “Please let my daughter Mrs. Nelson have my money, $4,500 (signed), Mrs. Julia Liggan.”, which writing plaintiff asserts she presented to the Central National Bank, along with her mother’s deposit book and received from the bank $4,500.00 without surrendering to the bank the written order. That the bank would have made payment of $4,500.00 upon *224such a note and presentation of a deposit book by one other than the depositor and then not have retained the note, the only written order allegedly authorizing the payment, is difficult to understand.
A minute and careful examination of the original perforated and certified check drawn on the Bank of Commerce and Trust for $5,213.95, discloses that it was not as such deposited in the Central National Bank. In faint letters stamped on the back which are well nigh indistinguishable and which were not pointed out upon the first argument of this case before us, it may be seen that the check was cashed and not deposited. The contradictory statements made by defendant, Louise L. Nelson, and the obscure lettering upon the certified and perforated check indicating that it was cashed, led, I think, to the inaccuracy in the factual recitals appearing in the first opinion reported in 189 Va. 637, 53 S. E. (2d) 798, which were to the effect, that only $4,500.00 was traced into defendant’s possession, and that the check of $5,213.95, was deposited in the bank to the credit of Mrs. Liggan. However, it now definitely appears that defendant, Louise L. Nelson, did not deposit that check to her mother’s credit but cashed it.
Though she says she deposited $4,500.00 to her mother’s account, she wholly fails to account for the balance of $713.95, and no bank book or other record whatever disclosing the deposit of any sum was ever produced in evidence. In addition, upon comparing the two signatures claimed by her to have been made by decedent before her death, i. e., one on the back of the check and one to the note by which defendant says she received the $4,500.00 from the bank, it is made evident that they were not written by the same person.
In my opinion, the jury were justified in believing that no gift was made by Julia Maude Liggan to her daughter of the $5,213.95, or any part thereof. But they were not entitled upon the evidence before them to award a verdict of $4,000.00 for defendant admitted that she obtained $4,500.00 *225by presentation of the note and deposit book to the bank and that such was the sum given to her. The verdict of $4,000.00, under these circumstances, is in and of itself a quite convincing fact that the jurors were confused and did not understand the exact issues involved or properly evaluate the evidence.
The administrator earnestly contends that no part of the check of $5,213.95, was ever deposited to the credit of Mrs. Liggan in the Central National Bank. No official or employee of the bank was called by either litigant as a witness. Whether or not a deposit was made, and if so, what amount, as well as upon what authority it was paid out to defendant could be definitely established by production of the bank’s records and testimony of its employee who made any such payment. With such evidence, all facts concerning the deposit, if ever made, and the withdrawal of the funds could be definitely ascertained and placed before the j^y-
If no deposit was made as contended by the administrator, and the testimony of Mrs. Nelson thus shown to be false in that important respect, the jury would be clearly and fully justified in concluding that no gift of any part of the fund was ever made by the mother to her daughter.
In my opinion, the judgment for $4,000.00 should be reversed and a new trial awarded, thus affording full opportunity to both litigants to present all pertinent and relevant facts to the jury, which obviously was not done at the trial in the lower court.
Buchanan, J., concurs in this dissent.